Visitation with a Stepchild

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Quoting readytoleave

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he indicated that he would be willing to give me 6 hours, in writting, with my step-daughter, during the time he has visititation with her on his weekends.

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OP's question was whether an agreement between her and dad would be enforceable or binding. And I stand by the answer that, no, it wouldn't.

Unless the step-mother acted as the child's primary caretaker for some extended period of time, although the court "MAY" do just about anything, odds are NOT in the OP's favor of getting the court to order visitation; especially if mom opposes it. OP's best course is to make nice with MOM...since dad is obviously in this for what benefits himself, and not the child.

I'll go further...

The ONLY reasons he's doing this are:

1. Because it's so much fun tormenting the OP

and

2. He's an ass.

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Quoting Dogmatique

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Divorce doesn't automatically take away standing.

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Technically, you are correct, but you are also completely wrong. Yes, she can file for custody if one of the stepchild's parents died or got divorced. Ohio courts are strict about in which circumstances a nonparent can file for visitation. However, the court will also ask why she didn't demand custody at the time of her OWN divorce, and her complaint would thus be dismissed. See Albert v. Lewis (2004) and Rowell v. Smith (2011), among others.

Long and short of it, she MIGHT be able to file for custody if a parent died, but she has only a limited time frame to do it.

Thank you so much for all the different angles that you are discussing here.

The only thing I see that I want to clarify is that he never offered me any type of custody of my step-daughter, and I would never ask for any type of custody, regardless of the fact that I have been in her life since the first day he met her, and love her as much as my own daughter. She has two parents, and doesn't need that kind of confusion. He was offering me time (visitation) with her in exchange for taking on more than my share of the marital debt. Knowing the situation, I didn't even know if what he was proposing would be legal, or enforceable.

I am just going to continue to do whatever I can to see her, whenever her mother allows, and hope that she knows in the future how much I love her.

Dogmatique, I want to print out your last post and pin it to my desk. You vocalized my sentiments that I can't express, perfectly. Thank you for that.

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Quoting jellybeany

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Technically, you are correct, but you are also completely wrong. Yes, she can file for custody if one of the stepchild's parents died or got divorced. Ohio courts are strict about in which circumstances a nonparent can file for visitation. However, the court will also ask why she didn't demand custody at the time of her OWN divorce, and her complaint would thus be dismissed. See Albert v. Lewis (2004) and Rowell v. Smith (2011), among others.

Long and short of it, she MIGHT be able to file for custody if a parent died, but she has only a limited time frame to do it.

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"Divorce doesn't automatically take away standing".

I am technically correct.

The point of your post is...what again?

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Quoting readytoleave

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Thank you so much for all the different angles that you are discussing here.

The only thing I see that I want to clarify is that he never offered me any type of custody of my step-daughter, and I would never ask for any type of custody, regardless of the fact that I have been in her life since the first day he met her, and love her as much as my own daughter. She has two parents, and doesn't need that kind of confusion. He was offering me time (visitation) with her in exchange for taking on more than my share of the marital debt. Knowing the situation, I didn't even know if what he was proposing would be legal, or enforceable.

I am just going to continue to do whatever I can to see her, whenever her mother allows, and hope that she knows in the future how much I love her.

Dogmatique, I want to print out your last post and pin it to my desk. You vocalized my sentiments that I can't express, perfectly. Thank you for that.

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Being a stepparent myself - and yes, I'm one of those "they're my girls" idiots* - this situation usually troubles me. Yes, we know that a parent's right to the care and control of the child is absolute and that's a good thing....

....except when you're doing nothing wrong and the actual parent is just being a twit who refuses to recognize a bond.

* - full disclosure. We have two adult girls. Legally, neither me nor my husband is the parent...but you better believe that they're our girls alright. Their father died when they were very little - enter my husband. Then their Mama died, too - enter me. The girls know how their parents are and count themselves lucky for getting bonus parents :D

(I'm rambling - forgive me!)

Our #1 recently renewed her wedding vows, and we took with us their Dad's military flag, and their Mama's ashes, and they sat nicely in special seats in the front row. :)

With regard to the proposal, "If you give up a good chunk of what you're entitled to receive under the judgment, I'll promise you time with your stepchild" -- trading away something to which you have a right for a promise you can't enforce -- I am immediately skeptical. As the divorce court in stepmom's case would have no jurisdiction over the child or custody issues, even if that language made it into an order it would not be something that a court could later enforce.

In the context of the suggestion that mom could start a custody case, as a third party, in relation to the custody order between the child's parents, let's start with this:

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Quoting readytoleave

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...I have a decent relationship with her mother, and she is very supportive and lets us visit together once or twice a month on her time.

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If I were advising mom about a third party's request that she reopen her custody case and seek modification to allow that third party to have court-enforceable visitation, even if mom liked and trusted that third party, I would advise against it in very strong terms. As long as the relationship is positive, and mom is granting access, the order is unnecessary. If circumstances change, and circumstances can change for a great many reasons, the third party will have rights that mom opposes. Such a request could even frighten a parent into limiting or cutting off access in order to prevent a theoretical claim within the context of future custody litigation.

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Quoting jellybeany

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According to R.C. 3109.051(B)(1), "A juvenile court may order visitation to a non-relative in cases involving a divorce, dissolution of marriage, legal separation, annulment, or child support proceeding."

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That statute grants a court the ability to grant visitation to a third party when a custody dispute is already pending before the court. An Ohio court interpreted the statute as follows:

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Quoting Hutton v. Hutton, 21 Ohio App.3d 26 (1984)

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We hold that the continuing jurisdiction of the trial court may be invoked to consider visitation rights of "any other person" by motion of any party, including the child, if made a party, or by the court on its own motion. Although strangers to the action have no right to file such a motion, they may make suggestions to the court.

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Under that reasoning, a third party cannot independently bring a motion to reopen a case to seek visitation or custody, but may attempt to gain custody if such a motion is filed by a party, the child, or sua sponte by the court. Under the facts stated above and the high burden of proof placed on third parties, even if the issue were before the court, I would not expect a third party petition to succeed if opposed by the child's parents. I see a reference to an unpublished case that may have applied a more liberal standard (I have not found a copy of the unpublished, non-precedential opinion), but I see no published cases that overrule Hutton.

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Quoting jellybeany

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However, the court will also ask why she didn't demand custody at the time of her OWN divorce, and her complaint would thus be dismissed. See Albert v. Lewis (2004) and Rowell v. Smith (2011), among others.

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Her answer, quite obviously, would be that her divorce court had no jurisdiction over the child.

Albert v. Lewis, 2004 Ohio 41 (2004), holds that in the absence of the statutorily required "", a third party may not bring an action for custody. It does not support your position that stepmom has to bring a custody claim within the context of her own divorce, nor would such an interpretation make any sense given that her divorce court has no jurisdiction over the child. Rowell v. Smith, 133 Ohio St.3d 288 (2012), involved the question of whether a court could enter temporary visitation orders in a case coming before it under the juvenile code, O.R.C. 2151.23, such that it could grant visitation to a third party. If you mean to suggest that in addition to her divorce, mom could bring a separate action under the juvenile code asking for visitation rights in relation to her stepchild, leaving aside for the moment the likelihood that such an action would antagonize the child's mother and potentially cause her to cut off access, as well as the question of coordinating custody actions between two courts, the standard for a third party to gain rights is onerous,

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Quoting In re Stoll, 165 Ohio App.3d 226, 845 N.E.2d 581 (3d Dist., 2006)

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In an R.C. 2151.23(A)(2) child custody proceedings between a parent and a nonparent, the hearing officer may not award custody to the nonparent without first making a finding of parental unsuitability — that is, without first determining that a preponderance of the evidence shows that the parent abandoned the child, that the parent contractually relinquished custody of the child, that the parent has become totally incapable of supporting or caring for the child, or that an award of custody to the parent would be detrimental to the child.

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But if you're qualifying your argument to "if a parent dies", then we're counting angels dancing on the head of a pin.

I have seen your story pop up occassionally on other threads, and it give me hope that someday, either

A) My husband will realize that he is in fact hurting more then just me. (Regardless of how unlikely this is to happen, I am still hoping.)
or
B) That my step-daughter will still feel the same way about me as your daughter's feel about you and your husband, even if I can only be involved on a very limited basis. Thankfully, due to her mom being a reasonable person, who knows and supports the relationship between my stepdaughter and myself, he can't erase me totally. :)

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Quoting Dogmatique

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"Divorce doesn't automatically take away standing".

I am technically correct.

The point of your post is...what again?

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That you're not as smart as you think you are, and you obviously can't read very well, especially law. Because I also said while you are technically correct, you are also completely wrong.

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Quoting Mr. Knowitall

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Albert v. Lewis, 2004 Ohio 41 (2004), holds that in the absence of the statutorily required "", a third party may not bring an action for custody. It does not support your position that stepmom has to bring a custody claim within the context of her own divorce, nor would such an interpretation make any sense given that her divorce court has no jurisdiction over the child. Rowell v. Smith, 133 Ohio St.3d 288 (2012), involved the question of whether a court could enter temporary visitation orders in a case coming before it under the juvenile code, O.R.C. 2151.23, such that it could grant visitation to a third party. If you mean to suggest that in addition to her divorce, mom could bring a separate action under the juvenile code asking for visitation rights in relation to her stepchild, leaving aside for the moment the likelihood that such an action would antagonize the child's mother and potentially cause her to cut off access, as well as the question of coordinating custody actions between two courts, the standard for a third party to gain rights is onerous

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I didn't tell her to file for visitation. She made a comment that she doesn't have any legal standing because she is not one of the parents. This is not true. My advice was to just work with Mother. Since she has already agreed that was the best course of action, then the arguing is kind of moot. But for the sake of it, I'll respond.

First, this issue is about visitation not custody which are separate issues at hand. As Ohio courts often make a distinction, so will I.

Second, a nonparent, e.g. a stepparent or a grandparent, can seek visitation under any of the following "disruptive precipitating event:" divorce, dissolution of marriage, legal separation, annulment, or child-support proceedings that involve a child. Please see the phrase "that involve a child." Father's divorce involves the child, even though it is not the OP's child.

It would not make sense that a stepparent could seek visitation with her stepchild under Mother and Father's original divorce (although it would make sense for, say, a grandparent). However, if divorce only applied to grandparents and not stepparents, then the law would entail that, and there would be another prong analysis that replaces Gibson. Father's divorce, therefore, would be a significantly disruptive event for the child. Again, this event isn't an event that affects the parents. It's an event that affects the child. She is potentially losing her half-sibling and a stepmother that she has known for six years.

I only gave this a cursory search, so if you find case law that denies a stepparent visitation after the stepparent's divorce, please share. This is an interesting issue.

I will say that the OP would not be seeking visitation under her OWN order/divorce/whatever, but she would seek visitation under Mother and Father's order. Her divorce is just the precipitating event. This, again, is rather a moot point. IF she wanted her own visitation time, she probably could ask Mother and Father to put it inside their order, especially if Father is giving up his visitation time and not Mother. But, I entirely agree with you on this. It would only serve to piss off Mother, where good relations are key.

The two cases I mentioned did not illustrate that stepmother has custody rights. (This is about VISITATION also, not custody.) They were given in response about stepmother having a FUTURE right to seek visitation, which is an entire spin-off issue. Actually, I've noticed that Dogmatique has a tendency to go off track with issues for no other reason that to be inflammatory and contrary, so it's not a surprise that a separate issue that doesn't address the OP occurred.

The point being that if she did not seek visitation at the time of her divorce, she probably wouldn't be able to seek visitation later. Because, as we see, she needs a precipitating event to occur in order for her to seek visitation.
Unfortunately, as you noted, that would mean death or divorce most likely.

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Quoting jellybeany

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That you're not as smart as you think you are, and you obviously can't read very well, especially law. Because I also said while you are technically correct, you are also completely wrong.

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I didn't tell her to file for visitation. She made a comment that she doesn't have any legal standing because she is not one of the parents. This is not true. My advice was to just work with Mother. Since she has already agreed that was the best course of action, then the arguing is kind of moot. But for the sake of it, I'll respond.

First, this issue is about visitation not custody which are separate issues at hand. As Ohio courts often make a distinction, so will I.

Second, a nonparent, e.g. a stepparent or a grandparent, can seek visitation under any of the following "disruptive precipitating event:" divorce, dissolution of marriage, legal separation, annulment, or child-support proceedings that involve a child. Please see the phrase "that involve a child." Father's divorce involves the child, even though it is not the OP's child.

It would not make sense that a stepparent could seek visitation with her stepchild under Mother and Father's original divorce (although it would make sense for, say, a grandparent). However, if divorce only applied to grandparents and not stepparents, then the law would entail that, and there would be another prong analysis that replaces Gibson. Father's divorce, therefore, would be a significantly disruptive event for the child. Again, this event isn't an event that affects the parents. It's an event that affects the child. She is potentially losing her half-sibling and a stepmother that she has known for six years.

I only gave this a cursory search, so if you find case law that denies a stepparent visitation after the stepparent's divorce, please share. This is an interesting issue.

I will say that the OP would not be seeking visitation under her OWN order/divorce/whatever, but she would seek visitation under Mother and Father's order. Her divorce is just the precipitating event. This, again, is rather a moot point. IF she wanted her own visitation time, she probably could ask Mother and Father to put it inside their order, especially if Father is giving up his visitation time and not Mother. But, I entirely agree with you on this. It would only serve to piss off Mother, where good relations are key.

The two cases I mentioned did not illustrate that stepmother has custody rights. (This is about VISITATION also, not custody.) They were given in response about stepmother having a FUTURE right to seek visitation, which is an entire spin-off issue. Actually, I've noticed that Dogmatique has a tendency to go off track with issues for no other reason that to be inflammatory and contrary, so it's not a surprise that a separate issue that doesn't address the OP occurred.

The point being that if she did not seek visitation at the time of her divorce, she probably wouldn't be able to seek visitation later. Because, as we see, she needs a precipitating event to occur in order for her to seek visitation.
Unfortunately, as you noted, that would mean death or divorce most likely.

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You're such a sweetheart.

Carry on.

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Quoting jellybeany

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That you're not as smart as you think you are, and you obviously can't read very well, especially law. Because I also said while you are technically correct, you are also completely wrong.

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I didn't tell her to file for visitation. She made a comment that she doesn't have any legal standing because she is not one of the parents. This is not true. My advice was to just work with Mother. Since she has already agreed that was the best course of action, then the arguing is kind of moot. But for the sake of it, I'll respond.

First, this issue is about visitation not custody which are separate issues at hand. As Ohio courts often make a distinction, so will I.

Second, a nonparent, e.g. a stepparent or a grandparent, can seek visitation under any of the following "disruptive precipitating event:" divorce, dissolution of marriage, legal separation, annulment, or child-support proceedings that involve a child. Please see the phrase "that involve a child." Father's divorce involves the child, even though it is not the OP's child.

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The court does not have jurisdiction to make rulings about THIS child in THIS divorce. The child is not a product of the marriage. This divorce does not involve the child in the legal sense.

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It would not make sense that a stepparent could seek visitation with her stepchild under Mother and Father's original divorce (although it would make sense for, say, a grandparent). However, if divorce only applied to grandparents and not stepparents, then the law would entail that, and there would be another prong analysis that replaces Gibson. Father's divorce, therefore, would be a significantly disruptive event for the child. Again, this event isn't an event that affects the parents. It's an event that affects the child. She is potentially losing her half-sibling and a stepmother that she has known for six years.

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A legal case regarding this child would be unconstitutional if it did not involve the mother of this child. The mother of this child is not a party to her new husband's divorce.

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I only gave this a cursory search, so if you find case law that denies a stepparent visitation after the stepparent's divorce, please share. This is an interesting issue.

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The proper search would be to find case law that does, and the specific facts involved in those cases. You will find that most of those involve situations where the stepparent has stood in loco parentis. I don't think that you are going to find any case law where visitation was granted to a stepparent who was married to the non custodial parent of the child.

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I will say that the OP would not be seeking visitation under her OWN order/divorce/whatever, but she would seek visitation under Mother and Father's order. Her divorce is just the precipitating event. This, again, is rather a moot point. IF she wanted her own visitation time, she probably could ask Mother and Father to put it inside their order, especially if Father is giving up his visitation time and not Mother. But, I entirely agree with you on this. It would only serve to piss off Mother, where good relations are key.

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You contradict your earlier statement in this thread with this paragraph, but at least you understand that it would only serve to piss mother off.

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The two cases I mentioned did not illustrate that stepmother has custody rights. (This is about VISITATION also, not custody.) They were given in response about stepmother having a FUTURE right to seek visitation, which is an entire spin-off issue. Actually, I've noticed that Dogmatique has a tendency to go off track with issues for no other reason that to be inflammatory and contrary, so it's not a surprise that a separate issue that doesn't address the OP occurred.

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Nonsense.

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The point being that if she did not seek visitation at the time of her divorce, she probably wouldn't be able to seek visitation later. Because, as we see, she needs a precipitating event to occur in order for her to seek visitation.
Unfortunately, as you noted, that would mean death or divorce most likely.

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She cannot seek visitation under her divorce, now, because the child has a mother that would have to be part of the process. There is no precipitating event in the child's legal life.